Her Majesty’s Advocate v. A.B. [2015] HCJAC 106

Crown appeal against sentence:- On 2 June 2015, at Aberdeen High Court, the appellant was convicted after trial of a contravention of section 1 of the Sexual Offences (Scotland) Act 2009 by penetrating the complainer’s mouth with his penis. On 30 June 2015 the respondent was sentenced to three years imprisonment. Here the Crown appealed against the sentence on the grounds that it was unduly lenient. The circumstances of the offence were that the respondent, who was 31 at the material time and going out with the complainer’s mother, forced the complainer, who was 14, by the issuing of threats, to put his penis in her mouth for two or three minutes and forced her to move his penis up and down with her hand. The sentencing judge reported that she took into account the lack of analogous offending, the absence of physical damage to the complainer and the violence being limited to a single threat. Here on behalf of the Crown it was submitted that insufficient regard had been had to the gravity of the offence which involved a significant breach of trust against a child within the family home and perpetrated with the threat of violence. It was further submitted that section 1 of the 2009 Act included, in the definition of rape, both anal and oral penile penetration and penetration of the mouth was as severe as penetration of the vagina and the legislation did not differentiate between ways rape could be committed for the purposes of sentencing. The Sexual Offences Definitive Guideline (2014) published by the Sentencing Council for England and Wales were referred to and the various aggravating and mitigating factors which would be relevant and in circumstances like the present case the starting point would have been 7 years, with a range of 6-9 years. It was further submitted that it would be unusual if a sentence in Scotland would be half of the minimum applicable in England. On behalf of the respondent it was submitted that sentencing guidelines did not remove judicial discretion and in light of the respondent’s lack of analogous previous offending and his employment record, the sentence was within the appropriate range. Here the court considered the circumstances of the case in light of the recategorisation of the crime of rape following the coming into force of the 2009 Act. The court observed that it depends on the facts and circumstances of a particular case to determine whether oral rape will result in a higher sentence than a vaginal rape or whether vaginal rape may result in a higher sentence than an oral rape. In this case the court considered that the sentence was unduly lenient and quashed the sentence of 3 years imprisonment and substituted a period of 5 years imprisonment. The court observed that whilst the Definitive Guidelines are not directly applicable in Scotland they do enable major disparities between the two systems to be highlighted. The court pointed to a number of aggravating features which the judge at first instance had given insufficient weight to:- (1) the rape of a 14 year old girl by a 31 year old man who was in a position of trust; (2) the respondent has shown no remorse; (3) the respondent remains in a state of denial.